It’s a climate that pits schoolchildren against health care, a time when a Democratic governor brags about plans to slash $1.8 billion from the state budget and cut 3,300 state jobs during his tenure. And yet state judges stand poised to get a bump in pay in 2012.
How in the world did it happen?
That led several lawmakers who acquiesced to the raises to see a potential safety valve: If things seem too grim when they sit down to write the budget, the Legislature might choose not to appropriate the money.
Such a move could, in theory, spark a legal fight over the current system of awarding pay raises to state officials. The constitutional provision that governs official salaries was revised in 2006 and hasn’t been interpreted in court since.
Not that anyone wants such a dispute to see the inside of a courtroom — and never mind that any judge who might hear such a case could also be a plaintiff. Those who pushed for the raises say that as state fortunes improve, the cost of giving a modest pay hike to judges who have received just one raise in the last decade won’t be a big deal.
“I think it would be unfair to suggest that [lawmakers] would do anything other than honor the commission recommendations to which they just agreed,” said David Klarich, who lobbied for the raises on behalf of the Missouri Circuit Judges Association and the Missouri Association of Trial Attorneys.
Under a process modified by voters a few years ago, an appointed commission of residents recommends salaries for lawmakers, state officials and judges. Those recommendations take effect unless both the House and Senate reject them by a two-thirds vote by Feb. 1, a tall order.
Late last year, the state Citizens’ Commission on Compensation for Elected Officials issued a plan that was novel if not exactly new. It tied state judges’ salaries to those of the federal bench.
Last year, Sen. Jim Lembke, R-St. Louis County, proposed a similar idea, though his measure never received a committee hearing. Yet this year, Lembke was among those who proposed vetoing the salary commission’s plan, arguing that it ties the hands of future legislators and could be unaffordable during such lean budget times.
Last year, Chief Justice William Ray Price Jr. said thanks but no thanks to Lembke’s proposed raises, saying the timing wasn’t right for raises given the state’s fiscal crisis.
But Price is singing a different tune this year, although the budget remains tight. He thanked the Legislature in a written statement shortly after the Feb. 1 deadline passed, saying there was “light at the end of the tunnel.”
In an interview last week, Price said delaying the raises until the 2013 fiscal year, when the economy hopefully will have improved, was key. And if the economy is still in the doldrums?
“Then we have to learn to live with the economy the way it is, and start making the necessary adjustments anyway,” he said. “It’s one thing if you’re getting through the dip. It’s another thing if that is going to be the long-term situation.”
Top legislative leaders also showed their displeasure with the idea of a pay raise for the judicial branch of government. House Speaker Steven Tilley co-sponsored his chamber’s measure to reject the planned pay boost, and Senate President Pro Tem Rob Mayer, R-Dexter and a lawyer, supported Lembke’s resolution.
But a majority of the Senate Rules Committee rejected Lembke’s resolution in January, in essence voting to grant raises to the judges. The similar House resolution was offered just days before the Feb. 1 deadline, and, while the House Rules Committee held a hearing, it never took a vote on the matter.
“I don’t really see the need for symbolic votes. We take votes that we’re serious about,” said House Rules Committee Chairman John Diehl, an Armstrong Teasdale attorney who said he personally supports boosting judges’ pay.
Given the obstacles, Diehl said, the process worked the way it was designed.
“This was a situation where there’d been no judicial raises for quite a long period of time,” said Diehl, R-Town & Country. “A lot of people recognized that the judges are probably underpaid compared to their counterparts in other states.”
That is an argument the legal community has been making for years. Before the 2006 constitutional amendment was passed, judicial raises, along with those of elected officials, had been rejected since 2000. A pay raise was approved in 2007, but another was rejected two years later.
“Truly, there was an appreciation and a realization of the need to pay our judges more competitively,” Keith Birkes, executive director of The Missouri Bar, said of this year’s legislative victory.
The raises are expected to cost the state about $2.9 million plus an additional $1.8 million in benefits. The amounts vary depending on title but range from roughly 5 percent for appellate and circuit judges to a more than 10 percent increase for the chief justice. Circuit judges’ salaries are scheduled to climb to $127,020, and the head of the Supreme Court will bring in $154,215. But the raises could bring other costs as well. According to the legislative cost estimates for the resolutions that would have rejected the pay plan, the total cost to the state will be more than $5 million.
That’s because some salaries are linked by statute to the pay of associate circuit judges. Under that scheme, administrative law judges would get raises of about $6,700, and the head of the Missouri State Public Defender System would get a raise of $6,500. In addition, 65 full-time prosecutors would get raises of about $7,500. The cost to the counties that pay those salaries would be about $487,000.
On one hand, the judicial raises would be just a tiny fraction of the state’s $23 billion budget. On the other hand, the $5 million cost is equal to the amount that was withheld from this year’s judicial budget to help the state’s financial crunch.
Diehl said the raises still are subject to appropriation, and that courts have generally backed lawmakers’ budget power.
“The Legislature could still decide not to appropriate the money in two years if the budget’s in the situation it’s in right now, but you still have to retain quality people and you also have to respect the constitutional process,” he said.
Among other things, the 2006 amendment deleted a phrase that said the raises were “subject to appropriations.” Arguably, that deletion makes the raises mandatory now that the deadline to reject them has passed.
“The argument I would make as a lawyer is that they’re required to do so by their failure to reject it,” said Klarich, who is also a former lawmaker. But, he stressed, he thinks such a scenario is “farfetched.”
“I think they will happily fund them,” he said.